Monder Law Group - News
CAN THE POLICE JUST TAKE MY BLOOD?
The scenario: You’re pulled over for a minor vehicle code violation and thereafter taken to the San Diego Police Department. You’re not offered a choice of blood or breath test. The police officer tells you “We’re going to take a blood test from you and we are getting a lady here to do it,” or words to that effect. You cooperate fully. However, you were never given a choice of tests, nor did you ever consent to the withdrawal of the blood from your body. Is this okay?
No, because in a case named Nelson v. City of Irvine, the California court ruled that requiring a DUI arrestee to submit to a warrantless test of the officer’s choosing and/or forcing the officer’s preferred blood test violates the Fourth Amendment’s general prohibition against non-consentual, warrantless searches. The Fourth Amendment of the Constitution of the United States (adopted nearly intact by the Constitution of California, Article I, Section 13, provides):
The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched and the persons or things to be seized.
- “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (Katz v. United States 389 U.S. 347, 351-352 (1967) [internal citations omitted].)
- “ . . . searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S. 347, 357 fns. omitted (1967).)
- “It is not disputed that the administration of a breath test is a search within the meaning of the Fourth Amendment and therefore subject to the requirements of that amendment.” (Emphasis added.) (Burnett v. Municipality of Anchorage 806 F.2d 1447, 1449 (9th Cir. 1986). [Citation omitted.].)
- “To pass constitutional muster under the Fourth Amendment a search must be reasonable. Generally, a search must also be supported by probable cause, and must be backed up by a warrant, or the circumstances must fit an exception to the warrant requirement.” (Nelson v. City of Irvine 143 F.3d 1196, 1200 (9th Cir. 1998) [internal citations omitted].)
- “In considering [warrant requirement exceptions], we must not lose sight of the Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746:
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
In short, a systematic failure to advise of the choice of tests violates Federal Equal Protection Rights. The court held In re Garinger (1987) 188 Cal.App.3 1149 that proof of a systematic failure to give the advice required by V.C. §13353 (now V.C. §23612) might violate federal equal protection rights and the breath test should be suppressed as a remedy for violation of said constitutional requirements. A skilled criminal defense attorney will know that the policy of the arresting officer to compel a blood sample, preferred by the police, without advising the citizen of his statutory right to a choice of tests, violates the Fourth Amendment. It is unreasonable. Furthermore, the defendant’s right to due process and his liberty interests were violated. The blood test results must be suppressed as a result of these constitutional violations.
If you have been arrested for suspected DUI and have been tricked into submitting a blood sample, it is imperative that you contact a DUI criminal defense attorney. You need an attorney with familiarity to the San Diego court system, and one who knows when and which arguments to make on your behalf. Call the Monder Law Group today.
